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Article 9: Liberty and security of person 2014, para. 8
- Paragraph text
- When private individuals or entities are empowered or authorized by a State party to exercise powers of arrest or detention, the State party remains responsible for adherence and ensuring adherence to article 9. It must rigorously limit those powers and must provide strict and effective control to ensure that those powers are not misused, and do not lead to arbitrary or unlawful arrest or detention. It must also provide effective remedies for victims if arbitrary or unlawful arrest or detention does occur.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 26
- Paragraph text
- Oral notification of reasons for arrest satisfies the requirement. The reasons must be given in a language that the arrested person understands.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 32
- Paragraph text
- Paragraph 3 requires, firstly, that any person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power. That requirement applies in all cases without exception and does not depend on the choice or ability of the detainee to assert it. The requirement applies even before formal charges have been asserted, so long as the person is arrested or detained on suspicion of criminal activity. The right is intended to bring the detention of a person in a criminal investigation or prosecution under judicial control. If a person already detained on one criminal charge is also ordered to be detained to face an unrelated criminal charge, the person must be promptly brought before a judge for control of the second detention. It is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power under paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 21
- Paragraph text
- When a criminal sentence includes a punitive period followed by a non-punitive period intended to protect the safety of other individuals, then once the punitive term of imprisonment has been served, to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee's committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future dangers. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee's rehabilitation and reintegration into society. If a prisoner has fully served the sentence imposed at the time of conviction, articles 9 and 15 prohibit a retroactive increase in sentence and a State party may not circumvent that prohibition by imposing a detention that is equivalent to penal imprisonment under the label of civil detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 22
- Paragraph text
- The third sentence of paragraph 1 of article 9 provides that no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law. Any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. Deprivation of liberty without such legal authorization is unlawful. Continued detention despite an operative (exécutoire) judicial order of release or a valid amnesty is also unlawful.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 65
- Paragraph text
- Article 9 is not included in the list of non-derogable rights of article 4, paragraph 2, of the Covenant, but there are limits on States parties' power to derogate. States parties derogating from normal procedures required under article 9 in circumstances of armed conflict or other public emergency must ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. Derogating measures must also be consistent with a State party's other obligations under international law, including provisions of international humanitarian law relating to deprivation of liberty, and non-discriminatory. The prohibitions against taking of hostages, abductions or unacknowledged detention are therefore not subject to derogation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 24
- Paragraph text
- Paragraph 2 of article 9 imposes two requirements for the benefit of persons who are deprived of liberty. First, they shall be informed, at the time of arrest, of the reasons for the arrest. Second, they shall be promptly informed of any charges against them. The first requirement applies broadly to the reasons for any deprivation of liberty. Because "arrest" means the commencement of a deprivation of liberty, that requirement applies regardless of the formality or informality with which the arrest is conducted and regardless of the legitimate or improper reason on which it is based. The second, additional requirement applies only to information regarding criminal charges. If a person already detained on one criminal charge is also ordered detained to face an unrelated criminal charge, prompt information must be provided regarding the unrelated charge.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 45
- Paragraph text
- Paragraph 4 entitles the individual to take proceedings before "a court," which should ordinarily be a court within the judiciary. Exceptionally, for some forms of detention, legislation may provide for proceedings before a specialized tribunal, which must be established by law and must either be independent of the executive and legislative branches or enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 2
- Paragraph text
- Article 9 recognizes and protects both liberty of person and security of person. In the Universal Declaration of Human Rights, article 3 proclaims that everyone has the right to life, liberty and security of person. That is the first substantive right protected by the Universal Declaration, which indicates the profound importance of article 9 of the Covenant both for individuals and for society as a whole. Liberty and security of person are precious for their own sake, and also because the deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 38
- Paragraph text
- The second sentence of paragraph 3 of article 9 requires that detention in custody of persons awaiting trial shall be the exception rather than the rule. It also specifies that release from such custody may be subject to guarantees of appearance, including appearance for trial, appearance at any other stage of the judicial proceedings and (should occasion arise) appearance for execution of the judgment. That sentence applies to persons awaiting trial on criminal charges, that is, after the defendant has been charged, but a similar requirement prior to charging results from the prohibition of arbitrary detention in paragraph 1. It should not be the general practice to subject defendants to pretrial detention. Detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. The relevant factors should be specified in law and should not include vague and expansive standards such as "public security". Pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances. Neither should pretrial detention be ordered for a period based on the potential sentence for the crime charged, rather than on a determination of necessity. Courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case. If the defendant is a foreigner, that fact must not be treated as sufficient to establish that the defendant may flee the jurisdiction. After an initial determination has been made that pretrial detention is necessary, there should be periodic re-examination of whether it continues to be reasonable and necessary in the light of possible alternatives. If the length of time that the defendant has been detained reaches the length of the longest sentence that could be imposed for the crimes charged, the defendant should be released. Pretrial detention of juveniles should be avoided to the fullest extent possible.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 41
- Paragraph text
- The object of the right is release (either unconditional or conditional) from ongoing unlawful detention; compensation for unlawful detention that has already ended is addressed in paragraph 5. Paragraph 4 requires that the reviewing court must have the power to order release from the unlawful detention. When a judicial order of release under paragraph 4 becomes operative (exécutoire), it must be complied with immediately, and continued detention would be arbitrary in violation of article 9, paragraph 1.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 4
- Paragraph text
- Paragraphs 2 to 5 of article 9 set out specific safeguards for the protection of liberty and security of person. Some of the provisions of article 9 (part of paragraph 2 and the whole of paragraph 3) apply only in connection with criminal charges. But the rest, in particular the important guarantee laid down in paragraph 4, i.e. the right to review by a court of the legality of detention, applies to all persons deprived of liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 67
- Paragraph text
- The procedural guarantees protecting liberty of person may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. In order to protect non-derogable rights, including those in articles 6 and 7, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by measures of derogation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 39
- Paragraph text
- Paragraph 4 of article 9 entitles anyone who is deprived of liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. It enshrines the principle of habeas corpus. Review of the factual basis of the detention may, in appropriate circumstances, be limited to review of the reasonableness of a prior determination.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 43
- Paragraph text
- Unlawful detention includes detention that was lawful at its inception but has become unlawful because the individual has completed serving a sentence of imprisonment or the circumstances that justify the detention have changed. After a court has held that the circumstances justify the detention, an appropriate period of time may pass, depending on the nature of the relevant circumstances, before the individual is entitled to take proceedings again on similar grounds.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 52
- Paragraph text
- The financial compensation required by paragraph 5 relates specifically to the pecuniary and non-pecuniary harm resulting from the unlawful arrest or detention. When the unlawfulness of the arrest arises from the violation of other human rights, such as freedom of expression, the State party may have further obligations to provide compensation or other reparation in relation to those other violations, as required by article 2, paragraph 3, of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 17
- Paragraph text
- Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant is arbitrary, including freedom of opinion and expression (art. 19), freedom of assembly (art. 21), freedom of association (art. 22), freedom of religion (art. 18) and the right to privacy (art. 17). Arrest or detention on discriminatory grounds in violation of article 2, paragraph 1, article 3 or article 26 is also in principle arbitrary. Retroactive criminal punishment by detention in violation of article 15 amounts to arbitrary detention. Enforced disappearances violate numerous substantive and procedural provisions of the Covenant and constitute a particularly aggravated form of arbitrary detention. Imprisonment after a manifestly unfair trial is arbitrary, but not every violation of the specific procedural guarantees for criminal defendants in article 14 results in arbitrary detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 33
- Paragraph text
- While the exact meaning of "promptly" may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. Longer detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment. Laws in most States parties fix precise time limits, sometimes shorter than 48 hours, and those limits should also not be exceeded. An especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 13
- Paragraph text
- The term "arrest" refers to any apprehension of a person that commences a deprivation of liberty, and the term "detention" refers to the deprivation of liberty that begins with the arrest and continues in time from apprehension until release. Arrest within the meaning of article 9 need not involve a formal arrest as defined under domestic law. When an additional deprivation of liberty is imposed on a person already in custody, such as detention on unrelated criminal charges, the commencement of that deprivation of liberty also amounts to an arrest.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 42
- Paragraph text
- The right to bring proceedings applies in principle from the moment of arrest and any substantial waiting period before a detainee can bring a first challenge to detention is impermissible. In general, the detainee has the right to appear in person before the court, especially where such presence would serve the inquiry into the lawfulness of detention or where questions regarding ill-treatment of the detainee arise. The court must have the power to order the detainee brought before it, regardless of whether the detainee has asked to appear.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 63
- Paragraph text
- In the light of article 2, paragraph 1, of the Covenant, States parties have an obligation to respect and to ensure the rights under article 9 to all persons who may be within their territory and to all persons subject to their jurisdiction. Given that arrest and detention bring a person within a State's effective control, States parties must not arbitrarily or unlawfully arrest or detain individuals outside their territory. States parties must not subject persons outside their territory to, inter alia, prolonged incommunicado detention or deprive them of review of the lawfulness of their detention. The extraterritorial location of an arrest may be a circumstance relevant to an evaluation of promptness under paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 23
- Paragraph text
- Article 9 requires that procedures for carrying out legally authorized deprivation of liberty should also be established by law and States parties should ensure compliance with their legally prescribed procedures. Article 9 further requires compliance with domestic rules that define the procedure for arrest by identifying the officials authorized to arrest or specifying when a warrant is required. It also requires compliance with domestic rules that define when authorization to continue detention must be obtained from a judge or other officer, where individuals may be detained, when the detained person must be brought to court and legal limits on the duration of detention. It also requires compliance with domestic rules providing important safeguards for detained persons, such as making a record of an arrest and permitting access to counsel. Violations of domestic procedural rules not related to such issues may not necessarily raise an issue under article 9.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 48
- Paragraph text
- The Covenant does not require that a court decision upholding the lawfulness of detention be subject to appeal. If a State party does provide for appeal or further instances, the delay may reflect the changing nature of the proceeding and in any event must not be excessive.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 10
- Paragraph text
- The right to liberty of person is not absolute. Article 9 recognizes that sometimes deprivation of liberty is justified, for example, in the enforcement of criminal laws. Paragraph 1 requires that deprivation of liberty must not be arbitrary, and must be carried out with respect for the rule of law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 15
- Paragraph text
- To the extent that States parties impose security detention (sometimes known as administrative detention or internment) not in contemplation of prosecution on a criminal charge, the Committee considers that such detention presents severe risks of arbitrary deprivation of liberty. Such detention would normally amount to arbitrary detention as other effective measures addressing the threat, including the criminal justice system, would be available. If, under the most exceptional circumstances, a present, direct and imperative threat is invoked to justify the detention of persons considered to present such a threat, the burden of proof lies on States parties to show that the individual poses such a threat and that it cannot be addressed by alternative measures, and that burden increases with the length of the detention. States parties also need to show that detention does not last longer than absolutely necessary, that the overall length of possible detention is limited and that they fully respect the guarantees provided for by article 9 in all cases. Prompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality as the judiciary is a necessary guarantee for those conditions, as is access to independent legal advice, preferably selected by the detainee, and disclosure to the detainee of, at least, the essence of the evidence on which the decision is taken.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 27
- Paragraph text
- That information must be provided immediately upon arrest. However, in exceptional circumstances, such immediate communication may not be possible. For example, a delay may be required before an interpreter can be present, but any such delay must be kept to the absolute minimum necessary.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 31
- Paragraph text
- The first sentence of paragraph 3 applies to persons "arrested or detained on a criminal charge", while the second sentence concerns persons "awaiting trial" on a criminal charge. Paragraph 3 applies in connection with ordinary criminal prosecutions, military prosecutions and other special regimes directed at criminal punishment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 66
- Paragraph text
- There are other elements in article 9 that in the Committee's opinion cannot be made subject to lawful derogation under article 4. The fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances. The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary. Valid derogations from other derogable rights may also be relevant when a deprivation of liberty is characterized as arbitrary because of its interference with another right protected by the Covenant. During international armed conflict, substantive and procedural rules of international humanitarian law remain applicable and limit the ability to derogate, thereby helping to mitigate the risk of arbitrary detention. Outside that context, the requirements of strict necessity and proportionality constrain any derogating measures involving security detention, which must be limited in duration and accompanied by procedures to prevent arbitrary application, as explained in paragraph 15 above, including review by a court within the meaning of paragraph 45 above.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 56
- Paragraph text
- Arbitrary detention creates risks of torture and ill-treatment, and several of the procedural guarantees in article 9 serve to reduce the likelihood of such risks. Prolonged incommunicado detention violates article 9 and would generally be regarded as a violation of article 7. The right to personal security protects interests in bodily and mental integrity that are also protected by article 7.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 11
- Paragraph text
- The second sentence of paragraph 1 prohibits arbitrary arrest and detention, while the third sentence prohibits unlawful deprivation of liberty, i.e., deprivation of liberty that is not imposed on such grounds and in accordance with such procedure as are established by law. The two prohibitions overlap, in that arrests or detentions may be in violation of the applicable law but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Arrest or detention that lacks any legal basis is also arbitrary. Unauthorized confinement of prisoners beyond the length of their sentences is arbitrary as well as unlawful; the same is true for unauthorized extension of other forms of detention. Continued confinement of detainees in defiance of a judicial order for their release is arbitrary as well as unlawful.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph